TMI Blog2014 (11) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... oducts and for taxable or exempted services but the assessee is not entitled to take CENVAT credit attributable to the activity of trading as during the relevant time, the trading activity was neither excisable nor an exempted service at all. Therefore, the quantification of inadmissible CENVAT credit is required to be done at the end of adjudicating authority to disallow the CENVAT credit attributable to trading activity. Whether the learned Commissioner has jurisdiction to reallocate the CENVAT credit or not - Held that:- Commissioner has no jurisdiction to reallocate the CENVAT credit to the assessee in question as there was no such allegation in the show-cause notice and he cannot go beyond the allegation in the show-cause notice to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e manufacturing dutiable as well as exempted goods. The Head Office at Andheri (West) distributed the CENVAT Credit of input services to the units located at Nerul, Pawane and Patalganga. While distributing CENVAT Credit the Head Office has distributed credit in proportion of turnover i.e. credit attributable to units exclusively engaged in exempt goods and credit attributable to trading was not distributed. However, CENVAT Credit on input services covered under Rule 6(5) of Cenvat Credit Rules, 2004 was distributed in full so long as it did not pertain to units exclusively engaged in manufacture of exempt goods or trading. Therefore, it was alleged in the show-cause notice that in respect of services mentioned in Rule 6(5) of Cenvat Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolved in all the appeals are common therefore, we find that the appeals can be taken together for final disposal by a common order. 5. The learned Counsel appearing for the assessee submits that Rule 6(5) of Cenvat Credit Rules, 2004, grants immunity to specified services; that even if part of such services are used in exempt business, full credit can be availed and utilized. Availing this immunity of Rule 6(5) of the Cenvat Credit Rules, 2004, the assessee has complied with the Rule 6(5) services. He submits that in the impugned order the learned Commissioner (Appeals) held that such immunity would be available only to manufacturers and not to ISD (input service distributor) as even ISD is indeed an office of the same manufacturer. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) ELT 469 (Tri. Ahmd) (b) CCE Cus v. MDS Switchgear Ltd. - 2008 (229) ELT 485 (SC) 5.3 He further submits that the Circular dated 10.03.2014 cannot be relied on in the light of the judgement of the Hon'ble Bombay High Court in Sunflag Iron Steel Co. Ltd. - 2003 (162) ELT 105 (Bom). 6. On the other hand, the learned A.R. appearing for the Revenue supported the impugned order and submits that the learned Commissioner is having the jurisdiction over the unit of the assessee located in his jurisdiction as a manufacturer and he is entitled to examine the correctness of the CENVAT Credit availed by the assessee. Further, it is the burden on assessee to prove that they have correctly taken the CENVAT Credit. Therefore, he pray ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examine the correctness of the admissible CENVAT credit to assessee. 8.1 The next issue before us is whether for the services covered under Rule 6(5) CENVAT Credit Rules, 2004, the assessee is entitled to take CENVAT credit in full or in proportionate. We have to go through the Rule 6(5) as it existed during the relevant time, which is reproduced here-in-under:- (5) Notwithstanding anything contained in sub-rules (1), (2) and (3), credit of the whole of service tax paid on taxable service as specified in sub-clauses (g), (p), (q), (r), (v), (w), (za), (zm), (zp), (zy), (zzd), (zzg), (zzh), (zzi), (zzk), (zzq) and (zzr) of clause (105) of Section 65 of the Finance Act shall be allowed unless such service is used exclusively in or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the show-cause notice and he cannot go beyond the allegation in the show-cause notice to decide the issue. 8.3 We further find that the issue involved in this case is whether the assessee is entitled to take CENVAT credit on the services covered under Rule 6(5) or not and which is debatable issue therefore, extended period of limitation is not invokable. Therefore, the matter needs examination at the end of the adjudicating authority to quantify inadmissible credit for the normal period of limitation. As the extended period of limitation is not invokable, consequently the penalty on the assessee is not warranted. Therefore, in result we pass the following order:- (a) We hold that the assessee is entitled to take CENVAT cred ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
